(PC) Hicks v. Russell ( 2023 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 DARYL ANTHONY HICKS, No. 2:22-cv-00095-JDP (PC) 12 Plaintiff, ORDER DENYING PLAINTIFF’S MOTION TO APPOINT COUNSEL 13 v. ECF No. 31 14 RUSSELL, et al., 15 Defendants. 16 17 Plaintiff is a state inmate proceeding without counsel in this civil rights action brought 18 under 42 U.S.C. § 1983. Plaintiff moves for the appointment of counsel. ECF No. 31. 19 Plaintiff does not have a constitutional right to appointed counsel in this action, see Rand 20 v. Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997), and the court lacks the authority to require an 21 attorney to represent plaintiff. See Mallard v. U.S. Dist. Ct. for the S. Dist. of Iowa, 490 U.S. 296, 22 298 (1989). The court can request the voluntary assistance of counsel. See 28 U.S.C. 23 § 1915(e)(1) (“The court may request an attorney to represent any person unable to afford 24 counsel”); Rand, 113 F.3d at 1525. But without a means to compensate counsel, the court will 25 seek volunteer counsel only in exceptional circumstances. In determining whether such 26 circumstances exist, “the district court must evaluate both the likelihood of success on the merits 27 [and] the ability of the [plaintiff] to articulate his claims pro se in light of the complexity of the 28 legal issues involved.” Rand, 113 F.3d at 1525 (internal quotation marks and citations omitted). 1 Plaintiff moves for the appointment of counsel because he cannot afford to hire a lawyer, 2 | he is limited in his ability to litigate this case due to be incarcerated, the issues in this case are 3 | complex, plaintiff is mentally and physically impaired, and a lawyer would aid plaintiff at trial. 4 | ECFNo. 31 at 1. Plaintiffs reasons for requesting the appointment of counsel “are typical of 5 | almost every pro se prisoner civil rights plaintiff and alone” are insufficient to satisfy the 6 | “exceptional circumstances” standard required to justify appointment of counsel. See Thompson 7 | v. Paramo, No. 16cv951-MMA (BGS), 2018 WL 4357993, at *1 (S.D. Cal. Sept. 13, 2018); 8 | Jones v. Kuppinger, 2:13-cv-451-WBS (AC), 2015 WL 5522290, at *3-4 (E.D. Cal. Sept. 17, 9 | 2015) (“Circumstances common to most prisoners, such as a deficient general education, lack of 10 | knowledge of the law, mental illness and disability, do not in themselves establish exceptional 11 | circumstances warranting appointment of voluntary civil counsel.”). Moreover, the allegations in 12 | the complaint are not exceptionally complicated, plaintiff has successfully submitted several 13 | filings without the assistance of counsel, and he has not demonstrated that he is likely to succeed 14 | on the merits. 15 Accordingly, it is hereby ORDERED that plaintiff's motion for the appointment of 16 || counsel, ECF No. 31, is denied. 17 18 IT IS SO ORDERED. 19 ( 1 Sty — Dated: _ November 16, 2023 Q_-——— 20 JEREMY D. PETERSON UNITED STATES MAGISTRATE JUDGE 22 23 24 25 26 27 28